On behalf of the defendant-appellant,
the cause was submitted on the briefs of Aneeq Ahmad of Kirk Obear Attorney at Law,
Sheboygan.

Respondent

ATTORNEYS:

On behalf of the plaintiff-respondent,
the cause was submitted on the brief of Jeffrey J. Kassel, assistant attorney general, and J.B.
Van Hollen, attorney general.

2013 WI App 37

COURT OF APPEALS

DECISION

DATED AND FILED

February 6, 2013

Diane M. Fremgen

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP935-CR

Cir. Ct. No.2011CF445

STATE OF WISCONSIN

IN COURT OF
APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

Jonathan A. Herr,

Defendant-Appellant.

APPEAL
from a judgment of the circuit court for Sheboygan County:timothy
m. van akkeren, Judge.Affirmed.

Before Brown, C.J., Neubauer, P.J., and Reilly, J.

¶1REILLY, J. Jonathan A. Herr was charged with
operating a motor vehicle while intoxicated (OWI) and attempting to flee or
elude an officer, both as felonies.Herr
pled guilty after the circuit court denied his motion to suppress evidence.Herr argued that suppression was necessary as
police used unreasonable force during his arrest.As the alleged unreasonable force had no
causal connection to the evidence sought to be suppressed, we affirm.

BACKGROUND

¶2Shortly after
2:30 a.m. on August 19, 2011, an officer with the Elkhart Lake Police
Department observed a tan pickup truck, later learned to be operated by Herr,
exit a resort/bar area at a high rate of speed.The officer followed Herr’s vehicle about one-quarter mile, during which
time the officer saw Herr’s vehicle drive on the wrong side of the road for
about twenty to thirty yards before swinging erratically back into its own
lane.The officer attempted to catch up
to Herr’s vehicle, which then accelerated so that the officer could not gain on
it even as his squad car was traveling one hundred miles per hour.The officer activated his emergency lights
and siren and attempted to stop Herr for speeding and for operating on the
wrong side of the road.

¶3Herr did
not stop and continued at speeds of up to eighty-five miles per hour for the
next fifteen miles.During a
twelve-minute chase, Herr blew through stop signs, weaved in his lane, crossed
onto the gravel on the side of the road, and avoided a stop strip placed by a
Sheboygan County sheriff’s deputy by sliding to a stop and executing a
180-degree turn.Herr’s vehicle was
finally boxed in by law enforcement in a felony stop.

¶4With two
squad cars behind Herr’s stopped vehicle and two in front, officers drew their
weapons and ordered Herr to show his hands and exit his vehicle.Herr did not follow the command to get out of
his vehicle and remained in his truck, where he attempted to light a cigarette
during which time he “put his hands out of sight.”An officer drew his taser and advised his
fellow officers that he was “going to go nonlethal” in removing Herr from the
vehicle.The officer opened the door of
Herr’s vehicle and deployed his taser on Herr for a five-second burst.The officer testified that he used his taser
because he feared that the pursuit might continue as Herr had the opportunity
to put the car back in gear and hit a squad car or an officer.The taser had its effect, and Herr was taken
into custody.

¶5Herr
smelled strongly of intoxicants when he was taken from his vehicle, failed his
field sobriety tests, and was arrested for OWI.A blood draw later showed that Herr had a blood alcohol concentration
(BAC) of .299 percent.Herr was
subsequently charged with felony OWI, felony operating with a prohibited BAC, felony
eluding arrest, and misdemeanor operating after revocation.Herr filed a motion to suppress “any and all
statements made by the defendant, the chemical test of the defendant’s blood,
and any other observations made by the arresting officer,” on the grounds that
the officer’s use of the taser was unreasonable.Following an evidentiary hearing, the court denied
Herr’s motion based on a finding that there was “no causal connection” between
the use of force and the evidence collected against Herr. The court made no findings related to whether
the officer’s deployment of the taser constituted an unreasonable use of
force.Herr thereafter pled guilty to
fifth-offense OWI and eluding arrest, both felonies.This appeal followed.

STANDARD OF REVIEW

¶6The grant
or denial of a motion to suppress evidence based on alleged violations of the
Fourth Amendment of the United States Constitution is reviewed under two
prongs.State v. Felix, 2012 WI
36, ¶22, 339 Wis. 2d 670, 811 N.W.2d 775.A circuit court’s findings of fact will be upheld unless they are
clearly erroneous.Id.Whether those facts establish that police
conduct violated a defendant’s Fourth Amendment right to be free from
unreasonable search or seizure is reviewed independently.Id.

ANALYSIS

¶7Herr
alleges that unreasonable force was used by the officer during his arrest in
violation of the Fourth Amendment.See Tennessee
v. Garner, 471 U.S. 1, 7-8 (1985).Herr argues that the remedy for the unreasonable use of force is the
suppression of all evidence thereafter obtained from him.

¶8Evidence
may be suppressed from admission at trial when it “is in some sense the product
of … illegal … activity.”Felix,
339 Wis. 2d 670, ¶30 (citation omitted; emphasis omitted).Not all illegal conduct triggers this
so-called exclusionary rule.Id.“The penalties visited upon the Government,
and in turn upon the public, because its officers have violated the law must
bear some relation to the purposes which the law is to serve.”Hudson v. Michigan, 547 U.S. 586,
593 (2006) (citation omitted).If the
interests that were violated by the unlawful police conduct “have nothing to do
with the seizure of the evidence, the exclusionary rule is inapplicable.”Id. at 594.

¶9As
Wisconsin’s appellate courts have not yet addressed whether the exclusionary
rule pertains to the excessive use of force, we look to persuasive federal law
for guidance.Our answer is provided by
the Seventh Circuit.In United
States v. Watson, 558 F.3d 702 (7th Cir. 2009), the Seventh Circuit
held that even if police use excessive force, a defendant’s remedy is a suit
for damages under 42 U.S.C. § 1983 (2012) or a state statute in conformity
therewith, rather than exclusion of the evidence in the defendant’s criminal
trial.Watson, 558 F.3d at
704.Watson involved a
defendant who argued that the evidence against him for illegal possession of
guns and ammunition should be suppressed as it was uncovered after police used
unreasonable force in surrounding his car, drawing their weapons, and ordering
him to leave the vehicle.Id.
at 703.The court found that suppression
was not available as “there is no causal connection between the manner in which
the police approached the defendant in this case and the search of the car that
disclosed the weapons used in evidence against him.”Id. at 704; see also Evans v. Poskon,
603 F.3d 362, 364 (7th Cir. 2010) (“[E]xcessive force in making an arrest or
seizure is not a basis for the exclusion of evidence.”).The vehicle still would have been searched
and the evidence seized absent any use of force.Watson, 558 F.3d at 704.

¶10Herr does
not contest that the police had probable cause to stop his vehicle and place
him under arrest for felony OWI and eluding arrest following a dangerous,
high-speed chase through Sheboygan County.Herr does not argue that there is a causal relationship between the
evidence he seeks to suppress and the officer’s alleged use of unreasonable
force, e.g., that he was tortured into making the statements that he made or in
consenting to field sobriety tests and a blood draw.Instead, Herr contends that the evidence
collected against him subsequent to his arrest should be ruled inadmissible
solely on the ground that police used excessive force in the manner with which
they seized him.

¶11As there is
no causal relationship between the alleged use of unreasonable force and the
evidence sought to be suppressed, Herr’s suggested remedy would ill serve our
legal system.Deterring police
misconduct is an important goal, but not one that should necessarily be pursued
at the expense of bringing criminals to justice.See Felix, 339 Wis. 2d 670, ¶39.The exclusionary rule is an extraordinary
remedy that exacts “substantial social costs,” including potentially releasing
guilty and dangerous criminals into our communities and impairing the
truth-seeking objectives of our legal system.See Hudson, 547 U.S. at 591.“Suppression of evidence … has always been our last resort, not our
first impulse.”Id. Even though the threat that evidence may be
suppressed may deter some police officers from using unreasonable force in
carrying out otherwise lawful seizures, “[t]he Fourth Amendment does not
require courts to exclude all evidence or forgo prosecuting a defendant
following unlawful police conduct.”Felix,
339 Wis. 2d 670, ¶40.As the evidence
Herr seeks to suppress was not causally related to the alleged use of
unreasonable force,[1]
we affirm the decision of the circuit court and Herr’s conviction.

By the Court.—Judgment affirmed.

[1] The
circuit court made no findings as to Herr’s argument that the officer’s
deployment of the taser was unreasonable.While we do not decide the issue, our independent review of the record
suggests that the use of the taser was most likely reasonable.Herr’s actions in the moments leading up to
his seizure reflected that he did not want to be taken into custody, would not
follow lawful commands, and was willing to engage in dangerous and reckless
behavior to elude his capture.Whether
force used during a seizure is reasonable depends on the individual
circumstances of the case, “including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he [or she] is actively resisting arrest or attempting to
evade arrest by flight.”Graham
v. Connor, 490 U.S. 386, 396 (1989).This objective test is viewed from the perspective of a reasonable
officer and “must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in
a particular situation.”Id.
at 396-97.Given this standard, it
appears likely that the nonlethal use of the taser was a reasonable use of
force considering Herr’s threat to the officers.